Full Judgment Text
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PETITIONER:
GUJARAT ELECTRICITY BOARD & ANR.
Vs.
RESPONDENT:
ATMARAM SUNGOMAL POSHANI
DATE OF JUDGMENT31/03/1989
BENCH:
SINGH, K.N. (J)
BENCH:
SINGH, K.N. (J)
VENKATARAMIAH, E.S. (J)
CITATION:
1989 AIR 1433 1989 SCR (2) 357
1989 SCC (2) 602 JT 1989 (3) 20
1989 SCALE (1)907
ACT:
CIVIL SERVICES: Transfer--An incident of service-No
employee has legal right to be posted at any particular
place--Transfer--Necessary in public interest and efficiency
of administration--No employee has right to be absent from
duty without sanction of leave.
PRACTICE AND PROCEDURE: Supreme Court--Transfer of case
from one Bench to another--Entitlement too-Only when Bench
is biased or there are other reasonable grounds--Not when a
Judge expresses opinion on merits of case on conclusion of
hearing.
Indian Evidence Act, 1872: Section 114(e)--Registered
cover sent to addressee presumption of service----When
arises.
HEADNOTE:
The respondent joined service as technical assistant
with the Gujarat State Electricity Board and was later
promoted to the post of Deputy Engineer. While he was posted
at Surat he was transferred to Ukai Sub-division under the
order of the Superintending Engineer dated 29th March, 1974
and he was relieved from his duties at Surat on 30th March,
1974. He made representation to the Addl. Chief Engineer for
cancelling his transfer order which was rejected and he was
directed to join at Ukai but he did not do so and continued
to be absent without sanction of any leave and instead he
filed a civil suit challenging validity of the order of
transfer.
The Superintending Engineer by his letter dated 18th
April, 1974 directed the respondent to show cause as to why
action should not be taken against him for disobeying the
order of transfer and also for unauthorised absence from
duty in breach of service Regulation No. 113. The respondent
failed to join his duty even after a warning. Thereafter the
Superintending Engineer sent a letter dated 24th April, 1974
by registered cover which contained a warning but the same
was returned back by the postal authorities with an endorse-
ment that the addressee refused to accept the same.
Meanwhile, the Chief Engineer by his order dated 27th May,
358
1974 discharged the respondent from service in accordance
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with service Regulation No. 113 as he had continued to
remain absent from duty since 30th March, 1974.
The respondent filed a writ petition before the High
Court challenging the validity of the order of his discharge
from service. A learned Single Judge of the High Court
quashed the order of discharge but looking to the attitude
of the respondent and continued conduct of disobedience of
the orders of his superior he was not granted consequential
reliefs. The respondent as well as the appellant-Board
preferred Letter Patent Appeals.
A Division Bench of the High Court dismissed the appeal
of the appellant-Board and allowed the respondent’s appeal
upholding the order of discharge as illegal and void and
directed the appellants to reinstate the respondent, to
treat him in service, and to grant him benefits of incre-
ments, seniority, and promotion. The Division Bench, howev-
er, did not grant full back-wages but directed the Board to
pay the respondent 50 per cent of back-wages. Against the
order of the Division Bench of the High Court the appellants
preferred an appeal to this Court by special leave.
The appeal came up for hearing and advocates for both
the parties were fully heard. Being satisfied that the
Single Judge as well as Division Bench of the High Court
committed error in allowing the writ petition of the re-
spondent, this Court suggested to the counsel for the re-
spondent that if he agreed the original writ petition of the
respondent could be dismissed without directing him to
refund the amount which he had already been paid by the
appellants in pursuance to the orders of the High Court and
of this Court. The bearing was adjourned to enable counsel
to obtain instructions from the respondent. On the next
hearing another counsel appeared on behalf of the respondent
to argue on merits. The Court refused to hear fresh argu-
ments as the hearing had already been completed. Thereupon,
the respondent appeared in person to make his submissions
which the Court refused as oral. hearing has already been
completed. However, in the interest of justice the respond-
ent was permitted to file written submissions. No written
submissions were filed, instead the respondent adopted an
unusual course by sending an application by post expressing
his no confidence in the Bench of this Court with a prayer
to transfer the case to some other Bench. The Court ignored
the request of the respondent as it was unusual, uncalled
for, and unjustified.
359
Allowing the appeal by special leave, this Court,
HELD: No party is entitled to get a case transferred
from one Bench to the other, unless the Bench is biased or
there are some reasonable grounds for the same. but no right
to get a case transferred to any other Bench, can legiti-
mately be claimed merely because the Judges express opinion
on the merits of the case on the conclusion of hearing.
[362E]
Transfer of a Government servant appointed to a particu-
lar cadre of transferable posts from one place to other is
an incident of service. No Government servant or employee of
public undertaking has legal right for being posted at any
particular place. Transfer from one place to other is gener-
ally a condition of service and the employee has no choice
in the matter. Transfer from one place to other is necessary
in public interest and efficiency in the Public Administra-
tion. [362H; 363A]
Whenever, a public servant is transferred he must comply
with the order but if there be any genuine difficulty in
proceeding on transfer it is open to him to make representa-
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tion to the competent authority for stay, modification, or
cancellation of the transfer order. If the order of transfer
is not stayed, modified, or cancelled the concerned public
servant must carry out the order of transfer. [363B]
If he fails to proceed on transfer in compliance to the
transfer order, he would expose himself to disciplinary
action under the relevant Rules, as has happened in the
instant case. The respondent lost his service as he refused
to comply with the order of his transfer from one place to
the other. [363C]
No Government servant or employee of any public under-
taking has a right to be absent from duty without sanction
of leave, merely on account of pendency of representation
against the order of transfer. [366B]
There is presumption of service of a letter sent under
registered cover, if the same is returned back with a postal
endorsement that the addressee refused to accept the same.
No doubt the presumption is rebuttable and it is open to the
party concerned to place evidence before the Court to rebut
the presumption by showing that the address mentioned on the
cover was incorrect or that the postal authorities never
tendered the registered letter to him or that there was no
occasion for him to refuse the same. The burden to rebut the
presumption lies on
360
the party, challenging the factum of service. [368B-C]
In the instant case, the respondent’s failure to join
his duties at Ukai resulted in unauthorised absence and his
failure to join his duties in spite of repeated reminders
and letters issued to him constituted sufficient valid
ground for taking action under Regulation No 113. Before
issuing the order of discharge the respondent was not only
warned but he was also afforded an opportunity to explain as
to why disciplinary action should not be taken against him.
The respondent acted in an irresponsible manner in. not
complying with the order of transfer which led to his dis-
charge from service in accordance with the Service Regula-
tion No. 113. The Single Judge as well as the Division Bench
both therefore erred. in law in setting aside the order of
discharge. [368E-G]
JUDGMENT:
CIVIL APPELLATE JURISDICTION: Civil Appeal No. 3561 of
1986.
From the Judgment and Order dated 28.2.1986 of the
Gujarat High Court in SCA No. 1176 of 1974.
B .K. Mehta, Shishir Sharma and P.H. Parekh for the Appel-
lants.
Respondent-in-person. (N.P.)
The Judgment of the Court was delivered by
SINGH, J. This appeal is directed against the judgment
and order of the High Court of Gujarat dated 28.2.1986
allowing the respondent’s writ petition and quashing order
of discharge from service and directing his reinstatement in
service.
The respondent joined service as technical assistant
with the Gujarat State Electricity Board (hereinafter re-
fened to as the Board). He was promoted to the post of
Deputy Engineer. While he was posted at Surat as Deputy
Engineer he was transferred to Ukai subdivision under the
order of the Superintending Engineer dated 29th March, 1974.
Pursuant to the order of transfer he was relieved from his
duties at Surat on 30th March, 1974 to enable him to join at
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Ukai. He made representation to the Additional Chief Engi-
neer for cancelling his transfer order on the ground that
his mother aged 70 years was ailing and it would cause great
inconvenience to him if he was required to join at Ukai. His
representation was rejected and he was directed to
361
join at Ukai but he did not do so instead he filed a civil
suit at Baroda challenging validity of the order of trans-
fer. Meanwhile, the Chief Engineer by his order dated 27th
May, 1974 discharged the respondent from service with effect
from 31st March, 1974 in accordance with service Regulation
No. 113. The respondent challenged the validity of the order
of his discharge from service by means of a writ petition
under Article 226 of the Constitution before the High Court
of Gujarat. A learned Single Judge of the High Court quashed
the order of termination on the findings that the order of
discharge was issued m violation of the basic principles of
natural justice as no opportunity was afforded to the re-
spondent before discharging him from services under Regula-
tion No. 113. The learned Single Judge granted a declaration
in respondent’s favour holding the order void and illegal
but having regard to recalcitrant attitude of the appellant
and his continued conduct of disobedience of the orders of
his superior authorities, he refused to grant consequential
reliefs regarding reinstatement or payment of back-wages.
The respondent as well as the appellant-board, both pre-
ferred Letters Patent appeals against the order of learned
Single Judge. A Division Bench of the High Court dismissed
the appeal preferred by the Appellants but it allowed the
respondent’s appeal. The Division Bench upheld the order of
the learned Single Judge holding the order of discharge
illegal and void but it set aside the order of the learned
Single Judge refusing to grant consequential relief instead
it directed the appellants to reinstate the respondent, and
to treat him in service without any break in service and to
grant him benefits of increments, seniority, and promotion
to which he may be entitled under the rules. The Bench,
however, did not grant full back-wages to the respondent
instead it directed the Board to pay him 50 per cent of
back-wages. Aggrieved, the appellant has preferred the
instant appeal after obtaining special leave of this Court.
This appeal came up for hearing before us on 28th Janu-
ary, 1988 and on that day Sh. B.K. Mehta, Advocate appearing
for the appellants and Sh. Vimal Dave, Advocate, appearing
for the respondent were fully heard. After hearing learned
counsel for the parties we were satisfied that the learned
Single Judge as well as the Division Bench both had commit-
ted error in allowing the writ petition and granting relief
to the respondent. We expressed our view in the Court and
suggested to Mr. Vimal Dave, counsel for the respondent,
that if he agreed the original writ petition of the respond-
ent could be dismissed without directing him to refund the
amount which he had already been paid by the appellants in
pursuance to the orders of the High Court and of this Court
as during the pendency of the appeal, the appellants
362
were directed by means of interim order of this Court to
continue to pay salary to the respondent which was being
paid to him regularly. The hearing was adjourned to enable
Sh. Vimal Dave, to obtain instructions from the respondent.
The appeal came up for hearing before us on 16.2.1988 when
another counsel appeared to argue the appeal on behalf of
the respondent on merits. We refused to hear the counsel as
we had already completed hearing. Thereupon, the respondent
himself appeared in person and sought permission to make his
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submissions personally. We refused to accede to his request
as oral heating had already been completed and the matter
had been adjourned only to enable the respondent’s counsel
to obtain instructions. However, in the interest of justice
we permitted the respondent to file written submissions. if
any, in support of his case. Thereafter, the case was listed
several times but no written submissions were filed instead
the respondent adopted an unusual course by sending an
application by post expressing his no confidence in us with
a prayer to transfer the case to some other Bench. Since
this was unusual, uncalled for and unjustified request we
ignored the same and reserved the order. We are constrained
to note that instead of utilising the opportunity granted to
him for filing written submissions the respondent has mis-
used adjournments for the purposes of raising frivolous
objections for getting the case transferred to some other
Bench. No party is entitled to get a case transferred from
one Bench to the other, unless the Bench is biased or there
are some reasonable grounds for the same, but no right to
get a case transferred to any other Bench, can legitimately
be claimed merely because the judges express opinion on the
merits of the case on the conclusion of hearing. In the
instant case on the conclusion of the oral hearing we had
expressed our opinion on 28.1.1988 in the open court, that
we were inclined to allow the appeal and set aside the order
of the High Court and dismiss the writ petition but taking a
sympathetic view we requested Sh. Vimal Dave, learned coun-
sel appearing for the respondent to obtain instructions as
aforesaid. The opportunity granted to the respondent has,
however, been misused by raising mischievous and frivolous
objections instead of filing written submissions. The re-
spondent’s prayer is accordingly rejected and since oral
hearing has already been completed, and in spite of several
adjournments respondent failed to appear before the Court or
to file the written submissions we proceed to decide the
case on merits.
Transfer of a Government servant appointed to a particu-
lar cadre of transferable posts from one place to the other
is an incident of service. No Government servant or employee
of Public Undertaking has legal tight for being posted at
any particular place. Transfer from
363
one place to other is generally a condition of service and
the employee has no choice in the matter. Transfer from one
place to other is necessary in public interest and efficien-
cy in the Public administration. Whenever, a public servant
is transferred he must comply with the order but if there be
any genuine difficulty in proceeding on transfer it is open
to him to make representation to the competent authority for
stay, modification or cancellation of the transfer order. If
the order of transfer is not stayed, modified or cancelled
the concerned public servant must carry out the order of
transfer. In the absence of any stay of the transfer order a
public servant has no justification to avoid or evade the
transfer order merely on the ground of having made a repre-
sentation, or on the ground of his difficulty in moving from
one place to the other. If he fails to proceed on transfer
in compliance to the transfer order, he would expose himself
to disciplinary action under the relevant Rules, as has
happened in the instant case. The respondent lost his serv-
ice as he refused to comply with the order of his transfer
from one place to the other.
There is no dispute that the respondent was holding a
transferable post and under the conditions of service ap-
plicable to him he was liable to be transferred and posted
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at any place within the State of Gujarat. The respondent had
no legal or statutory right to insist for being posted at
one particular place. In fact, during the tenure of his
service in the Board the respondent had been transferred
from one place to an other place several times. In March,
1974 he was transferred . from Surat to Ukai. The distance
between the two places as was stated before us during the
hearing of the case is less than 50 kms. He was relieved
from his duties at Surat on 30th March, 1974 but he did not
join at Ukai till the impugned order of discharge was issued
on May 27, 1974. The Chief Engineer who discharged the
respondent’s services exercised his power under Service
Regulation No. 113, which runs as under:
"113. The continued absence from duty or
overstay, m spite of warning, to return to
duty shall render the employee liable to
summarily discharge from service without the
necessity of proceedings under the Gujarat
Electricity Board, Conduct, Discipline and
Appeal Procedure."
The above Rule provides that if an employee of the Gujarat
Electricity Board continues to remain absent from duty or
overstays the period of sanctioned leave and in spite of
warning, he fails to return to duty, he renders himself
liable to be discharged summarily from service without
364
complying with the procedure prescribed for taking discipli-
nary action, under the Gujarat Electricity Board, Conduct,
Discipline and Appeal Procedure. Regulation 113 confers wide
powers on the authorities to summarily discharge an employee
from service, if he continues to be absent from duty in an
unauthorised manner and refuses to join his duty even after
warning. Under the disciplinary rules detailed procedure is
required to be followed for removing an employee from serv-
ice but Regulation 113 provides for summary discharge from
service. Before this power is exercised, two conditions must
be satisfied; Firstly, the employee must be found to be
absent from duty without leave or overstaying the period of
sanctioned leave, and secondly, he failed to join his duty
even after a warning. The object and purpose of giving
warning is to remind the delinquent employee that if he
continues to be absent from duty he would be liable to
action under Regulation 113 and to afford him an opportunity
to make amends by joining his duty. If even thereafter he
fails to join duty, his services are liable to be terminated
by an order of discharge. It is noteworthy that the validity
of Regulation 113 was not challenged before the High Court
and the parties proceeded on the assumption that Regulation
113 was valid and applicable to the respondent’s service.
The Chief Engineer discharged the respondent from service as
he had continued to remain absent from duty w.e.f. March 30,
1974 to May 27, 1974. The Division Bench of the High Court
held that no warning as contemplated by service Regulation
No. 113 had been issued to the respondent nor he had been
afforded any opportunity of showing cause before the im-
pugned order of discharge was passed and consequently, the
order of discharge was null and void being contrary to
service Regulation No. 113 itself. On perusal of the materi-
al on record we are of the opinion that the view taken by
the High Court is not sustainable as there is sufficient
material on record which shows that warning had been issued
to the respondent before the order of discharge was issued.
In determining the question whether any warning was
given to the respondent it is necessary to refer to the
sequence of events and the correspondence which ensued
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between the appellants and the respondent. On March 29, 1974
the Superintending Engineer of the Board issued the order,
transferring the respondent from Surat to Ukai, on 30.3.1974
the respondent was relieved from Surat and directed to join
his duty at Ukai, but the respondent did not join his duty
at the new place of posting. Instead he made a representa-
tion to the Additional Chief Engineer on 8.4.1974 after the
transfer order. The Transfer order was not stayed and as the
respondent did not join
365
his duties, he continued to be absent without sanction of
any leave. In this situation the Superintending Engineer by
his letter dated 18th April, 1974 directed the respondent to
show cause as to why action should not be taken against him
for disobeying the order of transfer and also for unautho-
rised absence from duty in breach of service Regulation No.
113. The letter is as under:
"GUJARAT ELECTRICITY BOARD
O & M DIVISION
Nana Varchha Road
Surat.
Dated 18th April, 1974
To
Shri A.S. Pohani
Junior Engineer, Ukai
37, Gurunagar Society
Near Jakat Naka, Surat-3.
Sub: Transfer from Surat to Ukai.
You have been relieved on 30.3.1974 A.N. on
account of your transfer from Surat to Ukai,
but you have not reported to Ukai till today
and remained on unauthorised absence on re-
lief, which is breach of S.R. No. 112 and 113.
Please submit your explanation as to why
action should not be taken against you for
disobeying order of superior and breach of
S.R. No. 112 and 113 within 7 days from re-
ceipt of this letter.
Sd/-Execut
ive
Engineer (O & M)
Surat
Copy f.w.c.s. to Superintending Engineer, GEB,
Utran."
There is no dispute that the respondent received the afore-
said letter as he sent a reply to the Superintending Engi-
neer on April 20, 1974, a copy of which was annexed as
Annexure ’J’ by the petitioner, to his
366
petition before the High Court. By that letter respondent
stated that he was waiting for the decision of his represen-
tation made for reconsideration of his transfer from Surat
to Ukai and therefore, the question of his remaining on
unauthorised leave was misconceived. Since the respondent
had not obtained any sanctioned leave for his absence his
absence from duty was unauthorised. No Government servant or
employee of any public undertaking has a right to be absent
from duty without sanction of leave, merely on account of
pendency of representation against the order of transfer.
Since the respondent continued to be absent from duty the
Superintending Engineer by a registered post acknowledgment
due letter dated April 24, 1974 informed the respondent that
his request to postpone his transfer was rejected and he was
directed to join his duty at Ukai and on his failure to do
so disciplinary action would be taken against him. The
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Establishment Officer (P) of the Board, also informed the
respondent by his letter dated May 6, 1974 that his repre-
sentation against the order of transfer was not accepted and
he was directed to obey the order of transfer. A copy of the
letter filed by the petitioner himself as Annexure ’K’ to
the writ petition in the High Court. But even thereafter,
the respondent did not join his duties. Ultimately, the
Chief Engineer of the Board took action against the respond-
ent and discharged him from service with effect from
31.3.1974 by his letter dated May 27, 1974. The sequence of
events and the correspondence which ensued between the
officers of the Board and the respondent clearly show that
the respondent disobeyed the order of transfer and he re-
mained absent from duty in an unauthorised manner without
obtaining sanction of leave. The aforesaid documents leave
no room for any doubt that the respondent was reminded of
his failure to join his duties at Ukai and he was further
reminded that his unauthorised absence had exposed him to
disciplinary action. In fact, the Superintending Engineer
had by his letter dated 18th April, 1974 clearly reminded
the respondent that his unauthorised absence was in breach
of Service Regulation No. 113 and called upon to show cause
why action should not be taken against him but in spite of
these letters the respondent failed to join his duties. The
Division Bench of the High Court has held that since no
warning was issued to the respondent action taken under
Service Regulation No. 113 was not in accordance with law.
This finding is wholly misconceived. A warning need not be
in any particular form. The object and purpose of the warn-
ing as contemplated by the Regulation,. is to remind the
delinquent employee that his continued unauthorised absence
from duties was liable to result in discharge of his serv-
ice. The substance of the Superintending Engineer’s letter
dated 18th April, 1974 which was admittedly served on the
respondent, contained
367
warning to the respondent, which fully met the requirement
of Regulation No. 113.
Before the High Court a controversy was raised as to
whether the registered letter dated 24.4.1974 addressed by
the Superintending Engineer to the respondent was received
by him or not. The registered cover, containing the letter
dated 24.4.1974 was returned back by the postal authorities
with an endorsement that the addressee refused to accept the
same. The respondent’s case was that no such registered
letter was tendered to him by the postman nor he ever re-
fused to accept the same. The Division Bench held that
letter dated 24.4.1974 which contained a warning had not
been served on the respondent and since the Board had failed
to raise the question before the learned Single Judge it
could not do so in the letters patent appeal. The Division
Bench further held that since the letter dated 24.4.1974 was
not served on the respondent, there was no material to show
that any warning had been issued to the respondent before he
was discharged from service. We do not agree with the view
taken by the Division Bench. Firstly, even if the letter
dated 24.4.1974 was not served on the respondent there is no
dispute that the Superintending Engineer’s letter dated 18th
April, 1974 had been served on him. By that letter warning
as contemplated by Regulation No. 113 had been issued to the
respondent. Therefore even if the letter dated 24.4.1974 was
not served on the respondent the order of discharge as
contemplated by Regulation No. 113 is sustainable in law.
But even otherwise, the Division Bench committed error in
holding that the Board had raised the question of service of
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the letter dated 24.4.1974 for the first time before the
Division Bench in the letters patent appeal. Perusal of the
averments made in paragraphs 17, 18, 23 and 25 (2)(ii) of
the counter-affidavit filed in reply to the petitioner’s
writ petition before the learned Single Judge shows that the
Board had categorically pleaded that the respondent was
informed by letter dated 24.4.1974 that his representation
to postpone his transfer was rejected and he should obey the
order of transfer. It was further pleaded that the respond-
ent had refused to accept the registered letter and the same
had been returned back by the postal authorities with an
endorsement that the addressee refused to accept the same.
In his rejoinder affidavit the respondent denied the afore-
said allegations and asserted that the letter was not ten-
dered to him and he never refused to accept the registered
cover and the postal endorsement was wrong and incorrect.
Apart from denying the postal endorsement, the respondent
placed no material before the Court in support of his plead-
ing. In this view, we are of the opinion that the Division
Bench was totally wrong in holding that
368
no opportunity was afforded to the respondent to meet the
case set up by the Board that the letter dated 24.4.1974 was
served on the respondent. No new plea had been raised by the
Board before the Division Bench instead the plea relating to
service of the aforesaid letter had already been before the
learned Single Judge.
There is presumption of service of a letter sent under
registered cover, if the same is returned back with a postal
endorsement that the addressee refused to accept the same.
No doubt the presumption is rebuttable and it is open to the
party concerned to place evidence before the Court to rebut
the presumption by showing that the address mentioned on the
cover was incorrect or that the postal authorities never
tendered the registered letter to him or that there was no
occasion for him to refuse the same. The burden to rebut the
presumption lies on the party, challenging the factum of
service. In the instant case the respondent failed to dis-
charge this burden as he failed to place material before the
Court to show that the endorsement made by the postal au-
thorities was wrong and incorrect. Mere denial made by ,the
respondent in the circumstances of the case was not suffi-
cient to rebut the presumption relating to service of the
registered cover. We are, therefore, of the opinion that the
letter dated 24.4.1974 was served on the respondent and he
refused to accept the same. Consequently,the service was
complete and the view taken by the High Court is incorrect.
In view of the above discussion, we therefore hold that
the respondent’s failure to join his duties at Ukai resulted
in unauthorised absence and his failure to join his duties
in spite of the repeated reminders and letters issued to him
constituted sufficient valid ground for taking action under
Regulation No. 113. We further hold that before issuing the
order of discharge the respondent was not only warned but he
was also afforded an opportunity to explain as to why disci-
plinary action should not be taken against him. The respond-
ent acted in an irresponsible manner in not complying with
the order of transfer which led to his discharge from serv-
ice in accordance with the Service Regulation No. 113. The
learned Single Judge as well as the Division Bench both
erred in law in setting aside the order of discharge. We,
accordingly, allow the appeal, set aside the order of the
Single Judge as well as Division Bench and dismiss the
respondent’s petition. There would be no order as to costs.
The respondent has been paid a sum of Rs. 1,04,170
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towards salary under the interim orders of this Court. Now,
since the order of
369
discharge is held to be valid the amount paid to the re-
spondent is liable to be recovered from him, but having
regard to the facts and circumstances of the case and the
hardship which could be caused to the respondent, we direct
the appellant not to recover the amount already paid to the
respondent.
S.K.A. Appeal al-
lowed.
370